Calculation of damages on account of defective goods

May
2
2017


Delhi High Court in the matter of Thyssen Krupp Materials Vs Steel Authority of India; FAO (OS) 150/2002 held that Section 73 of Indian Contract Act stipulates the rule of damages for breach of contract, aimed at compensating the injured party, as far as money can, by placing him in as good situation as if the contract had been performed. In regard to defective goods, the measure of damages is usually the price paid for the defective goods to the seller reduced by the price received when such defective goods are sold by the buyer.




Limitation Act applies to Arbitration and Conciliation Act 1996

Mar
17
2017


Delhi High Court in the matter of Jammu and Kashmir State Power Development Corporation Vs K J M C Global Market; FAO (OS) 263/2016 held It is now well settled that the provisions of the Limitation Act, 1963 apply to all proceedings under the Arbitration and Conciliation Act, 1996, including both in court and arbitration proceedings except to the extent expressly excluded by the provisions of the Arbitration Act, 1996. 




Lowest bidder not necessarily entitled to grant of tender

Mar
17
2017


Delhi High Court in the matter of Inderjit Mehta Vs Union of India; WP (C ) 683/2017 decided on 2nd March, 2017 held there is no vested right of a participant in a tender to have an agreement of award concluded in its favour. There cannot be any insistence for carrying on with the tender on the ground that a particular participant was adjudged as the lowest tenderer. All that can be demanded and be ensured to a tenderer is that he is given a fair, equal and non discriminatory treatment in the matter of evaluation of his tender.




Reciprocal Advertising #legalupdates

Mar
2
2017


Hon'ble Delhi High Court in a matter explained propositions relating to comparative advertising which means "any trader is entitled to puff his own goods even though such puff as a matter of pure logic involves the denigration of his rival's goods". Factors constituting disparagement were also laid down which were the intention, the overall effect and the manner of advertising the specific commercial. Taking in account the statements of law in both the commercials, concept of "reciprocal advertisement" was propounded, in which they disgrace each other products with the same level of malicious contents. Hence the court in the aforesaid matter held that interim injunction will not be granted.

Procter & Gamble Home Products vs Hindustan Unilever Ltd. CS (OS) No. 459/16,463/16 and 507/16 decided on 17th February, 2017

 

 




Which orders can be appealed against under Commercial Courts Act #indianlaws

Feb
20
2017


Division Bench of Delhi High Court in the matter of HPL (India) Limited Vs. QRQ Enterprise, FAO (OS) (COMM) No. 12/2017 was considering the effect of Section 13 of Commercial Courts, Commercial division and Commercial Appellate Division of High Courts Act, 2015 (Commercial Courts Act).




Courts cannot impose unlimited costs in civil proceedings #indianlaws

Feb
20
2017


Division Bench of Delhi High Court in the matter of Bikramjit Ahluwalia Vs. Avnija Ahluwalia FAO(OS) 173/2016 held that there is no question of exercising of inherent powers contrary to the specific provisions of the Code of Civil Procedure. Under Section 35A CPC, which deals with vexatious litigation and exemplary costs, the outer limit has been fixed. The Courts cannot enforce cost beyond what is prescribed in Section 35A.




Rebutting the presumption against accused in Section 138, N I Act #indianlaws

Feb
13
2017


Delhi High Court in the matter of Mukesh Kumar Vs. State Crl. L P 555/2017 decided on 2nd Feburary, 2017 held the fact that the cheque has been signed by the accused is not denied by the accused, itself raises a presumption against the accused under Section 139 of Negotiable Instruments Act that the cheque had been issued in respect of an outstanding debt or for consideration.  The presumption under Section 139 of Negotiable Instruments Act is a rebuttable presumption, and the standard of proof required to rebut the said presumption is on preponderance of probabilities.




A co-owner can maintain suit for eviction without impleading other co-owners

Feb
11
2017


Delhi High Court in the matter titled as  Ram Niwas Singh Vs. Rajendra Singh, RSA 25/2017 decided on 20.01.2017, held that co-owners to a property can file a suit for eviction of a tenant in the property. It was also re-emphasized that there is hardly any distinction between a suit for eviction and recovery of possession against a tenant after determination of tenancy, which determination only a co-owner is allowed to do and thereafter, maintain a suit for eviction of such tenant.




Mandate of arbitrator shall be terminated where parties agree to terminate proceedings

Feb
11
2017


Delhi High Court in a matter titled as Power Grid Corporation of India Ltd Vs. Deepak Cables (India) Limited; OMP (T)(COMM) 4/2017 decided on 25th January, 2017 held that under  14 (1)(b) of the Arbitration and Conciliation Act 1996  the mandate of an Arbitral Tribunal may be terminated where the parties so agree and the Arbitrator shall terminate arbitral proceedings by or pursuant to an agreement between the parties. The Tribunal is only required to enquire whether, there was an agreement between the parties.




For an apology to be accepted in contempt proceedings, it should be immediate #indianlaws

Jan
1
2017


Division Bench of Delhi High Court while dealing with a contempt proceedings held that an apology offered in contempt proceedings should be offered clearly and immediately, a belated apology may purge contempt but there is always a risk of it not being accepted. Relying upon a Supreme Court judgement it was held that an apology offered at the time when the contemnor finds that the Court is about to impose punishment, is no apology and can be rejected. Punishment for contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority.




Employer has the independence to decide the eligibility criterion for recruitment #indianlaws

Jan
1
2017


In a case before the Delhi High Court, petitioner was denied appointment on ground that he only had three years diploma in Hotel Management instead of the required graduation degree of a recognized university. The degree required for the recruitment as advertised, was graduation degree.

The Hon’ble Court held that it is privilege of employer to decide the qualifications it wants from a candidate for applying and granting appointment to a post and an employee cannot dictate, that instead of qualifications as prescribed by proposed employer some other qualifications be taken.




Unilateral withdrawal of consent by a spouse at the time of mutual divorce without any grounds amounts to mental cruelty #indianlaws

Dec
14
2016


The Delhi High Court in an appeal before them has held that unilateral withdrawal of consent by a spouse at the time of mutual divorce without any grounds amounts to mental cruelty. In a case filed by a husband against a trial court's order by which the couple, who got married in March 2004, mutually decided to separate but the husband withdrew his consent at the time of recording of second motion. The trial court allowed the woman's petition for divorce on the ground of cruelty. Challenging the trial court verdict, the husband moved the High court in an appeal.




Copyright Act includes all copying done for academic use if“justified by the demands of the course” #indianlaws

Dec
14
2016


The Delhi High Court Division Bench in a landmark judgment has held that photocopying of copyrighted material for use “in the course of instruction” that is allowed under Section 52(1)(i) of the Copyright Act would include all copying done for academic use in a university, as long as the text being copied was “justified by the demands of the course”. The Division Bench upheld the expanded scope of interpretation of “course of instruction” under Section 52(1)(i) to include the entire academic exercise from the setting of the syllabus to the actual classroom teaching.




Is suit for Partition maintainable in presence of a Will? #indianlaws

Dec
14
2016


Delhi High Court in this case had to decide questions relating to whether legal heirs can maintain a suit for partition when the parent has left a will, and second one related to payment of ad valorem court fee when the plaintiff was not in possession of suit property? The court held that there exists in law a doctrine of election. It means that if two or more rights are available to a party on the same subject, it would be open to a party to elect which one right it would like to avail of.




Proviso to Section 34(3) of the Arbitration Act is applicable only when there is sufficient cause for not making the application within the prescribed period #indianlaws

Dec
14
2016


Delhi High Court in a recent judgment has held that for application of the provisions of Section 34(3) of the Arbitration Act and, in particular, the proviso thereto, before the further period of 30 days is triggered, the condition precedent is that the court must be satisfied that the applicant was prevented by sufficient cause from making the application within the prescribed period of three months.




Meaning of Seat of Arbitration#indianlaws

Jun
21
2016


The term "subject matter of the arbitration" cannot be confused with "subject matter of the suit". The term "subject matter" in Section 2(1)(e) is confined to Part I. It has a reference and connection with the process of dispute resolution. Its purpose is to identify the courts having supervisory control over the arbitration proceedings. Hence, it refers to a court which would essentially be a court of the seat of the arbitration process.The provision in Section 2(1)(e)has to be construed keeping in view the provisions in Section 20 which give recognition to party autonomy. The legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process.




Transfer of the minor's immovable property without the permission of the Court is not binding on the minor# indianlaws

Jun
21
2016


Any transfer of the nature mentioned in sub- Section 2 of Section 8 Hindu Succession Act, of the minor's immovable property without the permission of the Court is not binding on the minor irrespective of the fact whether it was necessary or for an evident advantage to him/her and that such a transfer even made with Court's permission shall be voidable at the instance of the minor if he/she can show it does not fall in the category of acts which were necessary or reasonable or proper for the benefit of the minor or for realization, protection or benefit of the minor's estate.




No service tax chargeable in respect of composite contracts like the ones between property buyers and builder# indianlaws

Jun
21
2016


The arrangement between the buyer and the builder is a composite one which involves not only the element of services but also goods and immovable property. In order to sustain the levy of service tax on services, it is essential that the machinery provisions provide for a mechanism for ascertaining the measure of tax, that is, the value of services which are charged to service tax. Service tax since  is a tax on value addition and charges for preferential location in one sense embody the value of the satisfaction derived by a customer from certain additional attributes of the property developed. Such charges cannot be traced directly to the value of any goods or value of land but are as a result of the development of the complex as a whole and the position of a particular unit in the context of the complex. Court accordingly held that no service tax under section 66 of the Act read with Section 65(105)(zzzh) of the Act could be charged in respect of composite contracts such as the ones entered into by the Petitioners with the builder. 




As long tenancy continues to be effective, tenanted premises remains a shared household under Domestic Violence Act #indianlaws

Apr
19
2016


The tenanted premises where a woman lives with her husband would definitely come within the category of shared household but as long as the tenancy survives. A deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant she  would be entitled to raise all such pleas and claim trial thereon, as would have been available to the tenant himself and no more. So long as by availing the benefit of the provisions of the Transfer of Property Act and rent control legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance coming to an end. 




TRAI Regulations compensating consumer for call dropping, upheld #indianlaws

Mar
3
2016


Delhi High Court has held that the TRAI under the scheme of Act exercises both regulatory and regulation making powers. The Court stated that the regulation of TRAI which prescribes the liability of the Companies to compensate the consumers is limited only to originating calls with a cap of three calls per day per consumer and nominal compensation of one rupee for each call drop and therefore the impugned regulation cannot be struck down on the ground of being manifestly arbitrary.




Qualification clause for the purposes of pre-natal diagnostic tests(PNDT) invalid #indianlaws

Feb
25
2016


Delhi High Court has held that Section 2(p) of the PNDT Act defining a Sonologist or Imaging Specialist, is bad to the extent it includes persons possessing a postgraduate qualification in ultrasonography or imaging techniques – because there is no such qualification recognised by MCI and the PNDT Act does not empower the statutory bodies constituted thereunder or the Central Government to devise and coin new qualification; Rule 3(3)(1)(b) of the PNDT Rules (as it stands after the amendment with effect from 9th January, 2014) is ultra vires the PNDT Act to the extent that it requires a person desirous of setting up a Genetic Clinic / Ultrasound Clinic / Imaging Centre to undergo six months training imparted in the manner prescribed in the Six Months Training Rules.




IPAB has exclusive jurisdiction to consider and decide upon trademark registration invalidity #indianlaws

Feb
25
2016


Delhi High Court has held that IPAB has exclusive jurisdiction to consider and decide upon the merits of a plea of trademark registration invalidity – applying Section 47 and 57 of the Act- in the context of an infringement suit based on such registered trademark. Access to IPAB is not dependent on the civil court’s prima facie assessment of tenability of a plea of invalidity of trademark registration. In other words, Section 124 of the Trademarks Act does not control the choice of a litigant to seek rectification of a registered trademark.




A female can be a Karta, if eldest amongst coparceners #indianlaws

Feb
10
2016


The Delhi High Court has held that the impediment which prevented a female member of a HUF from becoming its Karta was that she does not possess the necessary qualification of coparcenership. Now that this disqualification was removed by the 2005 Amendment, there is no reason why Hindu women should be denied the position of a Karta. If a male member of an HUF, by virtue of his being the first born eldest, can be a Karta, so can a female member.  The objective of Section 6 of the Hindu Succession Act is to recognise the rights of female Hindus as coparceners and to enhance their right to equality apropos succession. 




Common Areas cannot be converted into parking areas on the insistence of a society resident #indianlaws

Jan
31
2016


Parking in the common area, would not convert such areas into parking areas. Such circulation and common areas are meant for the utilisation by all and cannot be appropriated, even temporarily by any person for the purposes of parking their vehicles.

It was held as essential to ensure that the circulation space, in the nature of path ways in the society is kept free and vacant at all point of time for the security of the members of the society to ensure access to emergency vehicles including fire tenders, ambulances and police vehicles at all points of time. The court further held that General Body is empowered to approve welfare schemes which are for the benefit of the members of the society as well as their families. It is in the welfare of all occupants in the society that free access unobstructed by parked vehicles is available to emergency vehicles to their flats. The sanctioned building plan permits parking only for one car per flat. The levy of penalty for bringing in extra vehicles has to be considered a welfare scheme for the benefit of the members of the society and their families and covered under the powers of the General Body within the stipulations contained in the statute and the Rules.




Application of mind is sine qua non for a valid sanction for initiating criminal proceedings against a public officer #indianlaws

Jan
20
2016


Obtaining sanction is a precursory sacrosanct step to initiate criminal proceedings against public officer, and the lack of a valid sanction precludes the court from taking cognizance of the offence alleged.




Property valued less than circle rate prescribed can be registered #indianlaws

Jan
2
2016


Delhi High Court has clarified that the parties presenting instruments/transfer document of basements of residential properties for registration, if of a consideration lower than the consideration/ valuation in accordance with the circle rates, shall upon their instruments/transfer documents after registration, under Section 47-A being referred to the Collector, be entitled to satisfy the Collector of the consideration/valuation of the subject basement in residential properties being lower than the consideration applicable to instruments/transfer documents of other floors in the same property and the Collector shall proceed to determine the same u/ss 47 A and 27 of the Stamp Act




Person to be classified as wilful defaulter cannot be denied legal representation by bank #indianlaws

Jan
2
2016


Borrowers of the Banks/FIs who are proposed to be classified/ declared as wilful defaulters and are given an opportunity of hearing before the GRC are entitled to be represented therein through advocates.




Directions given to trial courts on cases of child abuse and protection to child witnesses #indianlaws

Oct
11
2015


Trial Court must ensure the examination of the child witness by giving due protection to him and bring the child out of the pressure of the Petitioner/ Accused as well as of the father of the victim and even if need arises, should also consider cancellation of bail of the accused for the independent testimony of the child.




Guidelines for Delhi Family Courts to maintain privacy of parties to proceedings #Indianlaws

Jul
9
2015


Delhi High Court has given directions to the Family Courts to be cautious while dealing with privacy of parties to proceedings. It ruled that leave is to be sought from the Family Court before disclosing details of a personal nature concerning a party or a person or their conduct, which is likely to affect the right to privacy, or cause embarrassment.




Who is an "interested person" for challenging anti-dumping duty under Customs Tariff Act 1975

Mar
12
2015


Delhi High Court was seized of a matter wherein the principal challenge for setting aside impostion of anti-dumping duty was that Petitioner was an intersted person and was not given an oral hearing by the Designated Authority. The contention on the part of Central Government and domestic industry was that the petitioner did not fall within the defination of "interested party" as defined in Rule 2(c) of the Customs Tariff Rules 1995.

The relevant rule is reproduced hereinbelow:
(c) "interested party" includes -








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